Dei'ah veDibur - Information & Insight

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2 Kislev 5761 - November 29, 2000 | Mordecai Plaut, director Published Weekly








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Court Clears Arab Journalist of Encouraging Terror, Convicts Leader of Kach of Sedition
by Yated Ne'eman Staff

The High Court cleared journalist Yusef Jabarin of expressing support for a terrorist organization during the first intifadah, while convicting Binyamin Kahane of sedition during the election campaign of 1992 before Kach was outlawed. Both decisions reversed previous decisions of the High Court itself.

Both decisions dealt with the basic principles of freedom of speech and its limitations. The court dealt with the two appeals together and was not apparently concerned with the appearance it gave of permitting Arab calls to violence while stopping equally objectionable Jewish propaganda.

In 1991, Jabarin, a resident of Umm el-Fahm, wrote that "each time I shout hurrah, hurrah and throw a firebomb, I feel that I am wrapping myself in majesty and grandeur, I feel that I have found my identity and am participating in the defense of this identity and am worthy of living an honorable life." Jabarin was originally convicted according to Paragraph 4a of the 1948 Prevention of Terror Order, but then asked for an expanded hearing with seven justices.

In the case involving Kahane, the State asked for a second appeal hearing before an expanded panel after a lower court decision convicting Kahane was overruled.

During the 1992 election campaign, Kahane distributed leaflets which said: "Why is it that when Arabs coming from Umm el-Fahm slaughtered three soldiers, the government bombed Hizbullah in Lebanon instead of bombing the viper's nest of Umm el-Fahm?" Kahane was charged in accordance with Paragraphs 133 and 134 of the Penal Law, dealing with seditious acts and possessing a publication of a seditious nature.

A panel of seven justices -- President Aharon Barak, Deputy President Shlomo Levin and Theodore Or, Eliahu Mazza, Yaakov Kedmi, Dalia Dorner, and Jacob Turkel -- heard the two appeals. Or wrote both majority opinions. Barak supported the exoneration of Jabarin but opposed the conviction of Kahane.

Regarding the Jabarin case, Or concluded that the 1948 Prevention of Terror Ordinance was a draconian law limiting freedom of speech and was meant to fight terrorist organizations only.

"The order addresses terrorist organizations, not acts of violence perpetrated by individuals," wrote Or. "It addresses the danger stemming from the association of a group of people who resort to violent deeds which endanger human life."

According to Or, Jabarin acted individually. Therefore, the law the State cited was not applicable.

In the Kahane case, Or rejected the original Supreme Court decision that sedition could only be defined as an act meant to bring down the democratic regime. He said that Paragraph 136 (4) states clearly that sedition included "promoting feelings of ill will and enmity between different sections of the population."

"It seems to me that the value inherent in this section is the safeguarding of the ability of various segments of the population to live side by side in peace and security," wrote Or. "It is a value which we can call 'social solidarity.' The aim of this value is to safeguard the ability of all segments of the population, which differ one from the other in so many ways, to live together under one roof in one country."

Or wrote that an utterance could only be considered seditious if there is a "near certain" probability that it would persuade others to carry out acts of violence. Kahane's leaflet fulfilled this condition, he determined, even though in the eight years since it was handed out no one has followed its instructions.

Or decided to reconvict Kahane but to drop the four-month jail sentence that was originally handed down by Jerusalem Magistrate's Court.


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